N.D.R.Ev.
RULE 803. HEARSAY
EXCEPTIONS; AVAILABILITY OF DECLARANT
IMMATERIAL EXCEPTIONS TO THE RULE AGAINST HEARSAY -
REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS
The following are not excluded by the hearsay rule, even
though the declarant is available
as a witness:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(1) Present sense impression. A statement describing or
explaining an event or condition
made while the declarant was perceiving the event or condition, or immediately
thereafter.
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
(2) Excited utterance. A statement relating to a startling
event or condition made while the
declarant was under the stress of excitement caused by the event or
condition.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
(3) Then existing mental, emotional, or physical condition.
A statement of the declarant's
then existing state of mind, emotion sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain and bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it relates to the execution,
identification, or terms of declarant's will.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
(4) Statements for purposes of medical diagnosis or
treatment. Statements made for
purposes of medical diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or
treatment.
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for, and is reasonably pertinent to, medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
(5) Recorded recollection. A memorandum or record
concerning matter about which a
witness once had knowledge but now has insufficient recollection to enable the witness to
testify fully and accurately, shown to have been made or adopted by the witness when the
matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted,
the memorandum or record may be read into evidence but may not itself be received as an
exhibit unless offered by an adverse party.
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
(6) Records of regularly conducted business activity. A
memorandum, report, record, or
data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at
or near the time by, or from information transmitted by, a person with knowledge, if kept in
the course of a regularly conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record or data compilation, all as shown
by the testimony of the custodian or other qualified witness, unless the source of information
or the method or circumstance of preparation indicate lack of trustworthiness. The term
"business" as used in this paragraph, includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for
profit.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by, or from information transmitted by, someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of entry in records kept in accordance with the
provisions of paragraph (6).
Evidence a matter is not included in the memoranda, reports, records, or data compilations,
in any form, kept in accordance with the provisions of paragraph (6), to prove the
nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a
memorandum, report, record, or data compilation was regularly made and preserved, unless
the sources of information or other circumstances indicate lack of
trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
(8) Public records and reports. Records, reports,
statements, or data compilations, in any
form, of public offices or agencies, setting forth (i) the activities of the office or agency, or
(ii) matters observed pursuant to duty imposed by law as to which matters there was a duty
to report, excluding, however, in criminal cases matters observed by police officers and other
law enforcement personnel, or (iii) in civil actions and proceedings and against the State in
criminal cases, factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances indicate lack of
trustworthiness. However, factual findings may not be admitted under this exception unless
the proponent furnishes to the party against whom they are offered a copy of the factual
findings, or portion thereof as relates to the controversy, sufficiently in advance of its offer
in evidence to provide the adverse party with a fair opportunity to prepare. The adverse party
may cross-examine under oath any person making the report or factual findings or any person
furnishing information contained therein, but the lack of availability of that testimony does
not affect admissibility of the report or factual findings unless, in the opinion of the court,
the adverse party would be prejudiced unfairly.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
Before offering factual findings in evidence under this exception, a party must provide the opposing party a copy of the findings, or the portion that relates to the controversy. The opposing party may cross-examine under oath the person who prepared a record, statement or factual findings submitted under this exception, or any person furnishing information recorded in the record, statement or findings. If the person is unavailable for cross-examination, the record, statement, or findings may be admitted under this exception unless the court decides the opposing party would be prejudiced unfairly.
(9) Records of vital statistics. Records or data
compilations, in any form, of births, fetal
deaths, deaths, or marriages, if the report was made to a public office under requirements of
law.
(9) Public Records of Vital Statistics. A record of a birth, fetal death, death, or marriage, if reported to a public office in accordance with a legal duty.
(10) Absence of public record or entry. To prove the
absence of a record, report, statement
or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which
a record, report, statement, or data compilation, in any form, was regularly made and
preserved by a public office or agency, evidence in the form of a certification in accordance
with Rule 902, or testimony, that diligent search failed to disclose the record, report,
statement or data compilation, or entry.
(10) Absence of a Public Record. Testimony, or a certification under Rule 902, that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:
(A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.
(11) Records of religious organizations. Statements of
births, marriages, divorces, deaths,
parentages, ancestry, relationship by blood or marriage, or other similar facts of personal or
family history, contained in a regularly kept record of a religious
organization.
(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar certificates.
Statements of fact, contained in a
certificate that the maker performed a marriage or other ceremony or administered a
sacrament, made by a clergyman, public official, or other person authorized by the rules or
practices of a religious organization or by law to perform the act certified, and purported to
have been issued at the time of the act or within a reasonable time
thereafter.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a reasonable time after it.
(13) Family records. Statements of fact concerning
personal or family history contained in
family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits,
engravings on urns, crypts, or tombstones, or the like.
(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
(14) Records of documents affecting an interest in
property. The record of a document
purporting to establish or affect an interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person by whom it purports to
have been executed, if the record is a record of the public office and an applicable statute
authorizes the recording of documents of that kind in that office.
(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
(15) Statements in documents affecting an interest in
property. A statement contained in a
document purporting to establish or affect an interest in property if the matter stated was
relevant to the purpose of the document, unless dealings with the property since the
document was made have been inconsistent with the truth of the statement or the purport of
the document.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose, unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
(16) Statements in ancient documents. Statements in a
document in existence twenty years
or more the authenticity of which is established.
(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.
(17) Market reports, commercial publications. Market
quotations, tabulations, lists,
directories, or other published compilations, generally used and relied upon by the public or
by persons in particular occupations.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
(18) Learned treatises. To the extent called to the attention
of an expert witness upon cross-examination or relied upon by the expert witness in direct
examination, statements contained
in published treatises, periodicals or pamphlets on a subject of history, medicine, or other
science or art, established as a reliable authority by the testimony or admission of the witness
or by other expert testimony or by judicial notice. If admitted, the statements may be read
into evidence but may not be received as exhibits.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not
received as an exhibit. (19)
Reputation concerning personal or family history. Reputation among members of a person's
family by blood, adoption, or marriage, or among a person's associates, or in the community,
concerning a person's birth, adoption, marriage, divorce, death, parentage, relationship by
blood, adoption, or marriage, ancestry, or other similar fact of a person's personal or family
history.
(19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage, or among a person's associates or in the community, concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
(20) Reputation concerning boundaries or general history.
Reputation in a community,
arising before the controversy, as to boundaries of or customs affecting lands in the
community, and reputation as to events of general history important to the community or
State or nation in which located.
(20) Reputation Concerning Boundaries or General History. A reputation in a community, arising before the controversy, concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.
(21) Reputation as to character. Reputation of a person's
character among associates or in
the community.
(21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.
(22) Judgment of previous conviction. Evidence of a final
judgment, entered after a trial or
upon a plea of guilty, adjudging a person guilty of a felony, to prove any fact essential to
sustain the judgment, but not including, when offered by the prosecution in a criminal
prosecution for purposes other than impeachment, judgments against people other than the
accused. The pendency of an appeal or post-conviction proceeding may be shown but does
not affect admissibility.
(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea;
(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
The pendency of an appeal or post-conviction proceeding may be shown but does not affect admissibility.
(23) Judgment as to personal, family, or general history, or
boundaries. Judgments as
matters of proof of matters of personal, family, or general history, or boundaries, essential
to the judgment, if the same would be provable by evidence
reputation.
(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.
(24) Child's statement about sexual abuse. An
out-of-court A statement by a child under the
age of 12 years about sexual abuse of that child or witnessed by that child is
admissible as
evidence (when not otherwise admissible under another hearsay exception)
if:
(a) The (A) the trial court finds, after
hearing upon on notice in advance of the trial of the
sexual abuse issue, that the time, content, and circumstances of the statement provide
sufficient guarantees of trustworthiness; and
(b) The (B) the child
either:
(i) Testifies testifies at the
proceedings trial; or
(ii) Is is unavailable as a witness and
there is corroborative evidence of the act which is the
subject of the statement.
(25) [Other Exceptions.] [Transferred to Rule 807]EXPLANATORY NOTE
Rule 803 was amended, effective March 1, 1990; March 1, 2000;______________.
Rule 803 is an adoption of Rule 803 of the Federal Rules
of Evidence is based on Fed.R.Ev.
803.
The last two sentences in 803(8)
paragraph (8) are were derived from N.D.C.C.
§§
31-09-11 and 31-09-12, which are were superseded by these
rules.
The excepted situations listed in this rule traditionally have been deemed to have circumstantial guarantees of trustworthiness which render hearsay evidence reliable and admissible, even though the declarant may be available to testify.
The first three exceptions listed comprise what has been
loosely termed the "res gestae"
exception. That phrase is not used in this rule. The use of the specific exceptions, rather than
the vague and elusive "res gestae" is felt to depict a clearer picture of which statements are
within the exception, and the justification for their admissibility.
Subdivision Paragraph (22) provides
in certain instances, evidence of a previous final
judgment comes within a hearsay exception. The subdivision
paragraph differs from its
federal counterpart. The federal exception for pleas of nolo contendere has been deleted as
that plea is not used in the State state courts of North Dakota.
Rules 11 and 12, NDRCrimP.
The subdivision paragraph also was changed by adding
post-conviction proceedings, like
appeals, do not affect the admissibility of previous convictions.
It should also be noted these exceptions remove only the hearsay
objection to evidence.
Evidence of a past conviction sought to be introduced under paragraph (22)
sought to be
introduced must also meet the requirements of Rule 609,
NDREv.
Rule 803 was amended, effective March 1, 1990, to provide a hearsay exception for a child victim of sexual abuse and is modeled in part after the Colorado and Utah statutes on a child victim's out-of-court statement regarding sexual abuse. Former paragraph (24) was renumbered to paragraph (25) and all other amendments are technical in nature and no substantive change is intended.
Rule 803 was amended, effective March 1, 2000, to follow the December 1, 1997, federal amendment. The contents of Rule 803(25) are transferred to new Rule 807.
Rule 803 was amended, effective ______________, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Supreme Court Conference Minutes: Rule
803(24); of October 23 and October 25,
1989 [Rule 803 (24)]. Joint Procedure Committee Minutes:
of________________; Rule
803(25), September 24-25, 1998, page 4; April 30-May 1, 1998, page 16; Rule
803(24),
April 20, 1989, pages 6-8; March 24, 1988, pages 2-6 and 15-16; December 3, 1987, pages
6-7; May 21, 1987, pages 6-7; Rule 803(5), (18), (19), (21), (25), December 3, 1987, pages
15-16; Rule 803, June 3, 1976, page 15; Rule 803(1), (2), January 29, 1976, page 19; Rule
803(3), January 29, 1976, page 19; October 1, 1975, page 7; Rule 803(4), (5), January 29,
1976, page 19; Rule 803(6), January 29, 1976, page 20; Rule 803(7), January 29, 1976, page
20; October 1, 1975, page 7; Rule 803(8), January 29, 1976, page 21; October 11, 1975, page
7; Rule 803(9), (10), (12), (13), (14), (15), (16), (17), (18), (20), (21), January 29, 1976,
pages 21-23; Rule 803(11), June 3, 1976, page 15; January 29, 1976, page 22; Rule 803(19),
June 3, 1976, page 15; January 29, 1976, page 23; Rule 803(22), January 29, 1976, page 23,
24; October 1, 1975, page 7; Rule 803(23), January 29, 1976, page 24; Rule 803(24), April
8, 1976, pages 8a, 9; January 29, 1976, page 24. Rule
Fed.R.Ev. 803, Federal Rules of
Evidence; Rule 803, SBAND proposal.
Statutes Affected:
Superseded: N.D.C.C. §§ 31-09-11, 31-09-12.
Considered: N.D.C.C. §§ 2-06-05, 4-09-05, 4-09-07, 4-10-03, 4-10-12, 4-11-15, 4-11-19, 4-11-20, 4-22-15, 6-03-32, 6-08-10, 7-01-12, 7-08-02, 7-08-03, 10-04-19, 10-15-08, 10-19-55, 10-23-13, 10-24-31, 10-28-09, 11-11-38, 11-13-08, 11-15-16, 11-18-09, 11-20-01, 11-20-05, 11-20-13, 12-44-18, 14-03-24, 15-29-10, 15-51-10, 16-13-11, 16-20-08, 19-01-10, 19-03.1-37, 19-20.1-17, 23-02-40, 23-24-04, 24-07-15, 26-08-07, 26-12-09, 26-12-13, 26-12-15, 26-15-04, 26-15-26, 26-29-12, 28-20-31, 28-23-12, 31-04-05, 31-04-06, 31-08-01, 31-08-02, 31-08-05, 32-19-26, 32-25-03, 32-25-04, 33-01-13, 33-04-17, 35-21-05, 35-22-11, 35-22-16, 36-09-08, 36-09-20, 39-20-07, 40-01-10, 40-02-12, 40-04-06, 40-11-08, 40-16-09, 40-42-01, 40-58-08, 41-03-66, 42-02-07, 43-01-21, 43-01-22, 43-06-07, 43-07-13, 43-10-07, 43-11-10, 43-13-12, 43-17-11, 43-19.1-10, 43-19.1-20, 43-28-08, 43-28-16, 43-29-04, 43-36-17, 44-06-08, 44-06-09, 47-19-06, 47-19-12, 47-19-23, 47-19-24, 47-19-45, 48-02-15, 49-01-14, 49-06-14, 49-19-16, 57-24-29, 57-38-46, 61-03-06, 61-04-25, 61-05-19, 61-16-06.
Cross Reference: N.D.R.Ev. 609 (Impeachment by Evidence of a Criminal Conviction; N.D.R.Ev. 807 (Residual Exception); N.D.R.Crim.P. 11 (Pleas); N.D.R.Crim.P 12 (Pleadings and Pretrial Motions).